NANIKUTTY and others v. KUMARAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933** **SA.No. 239 of 1999(C)** **-------------------------------** **AS.25/1990 of SUB COURT, CHERTHALA OS.523/1987 of PRL.MUNSIFF COURT, CHERTHALA ....................** ## **APPELLANT(S): APPELLANTS/PLAINTIFFS** **-------------------------------------------------------------** **1. NANIKUTTY, W/O. KANNAN, PUTHUVAL NIKARTH KAVALPARAMBU VEEDU, EZHUPUNNA MURI, AROOR VILLAGE AROOR.** **2. PANKAJAKSHY D/O. NANIKUTTY, OF DO. DO.** **3. SUBHANA D/O. NANIKUTTY OF DO. DO.** **4. MADANAN, S/O. NANIKUTTY OF DO. DO.** **5. USHA, D/O. NANIKUTTY OF DO. DO.** - **BY ADV. SMT.VANAJA MADHAVAN** ## **RESPONDENT(S): RESPONDENT/DEFENDANT** **-----------------------------------------------------------------** **KUMARAN, SON OF KARUMBA, RESIDING AT PANDOTHUKARIYIL HOUSE, EZUPUNNA MURI, AROOR VILLAGE.** **ADV. SRI.V.L.SHENOY** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **ORDER ON CMP. NO.742/1999 IN SA. NO.239/1999** ## **DISMISSED** **03/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE** **tss** ## **P.BHAVADASAN, J.** ------------------------------------SA No.239 of 1999-C ------------------------------------Dated this the 3[rd] day of June 2011 ## Judgment The plaintiffs in OS No.523/87 before the Munsiff's Court, Cherthala in a suit for partition and damages, are the appellants. 2. The plaintiffs are the legal heirs of late Kannan. According to the plaintiffs, Ext.A1 document dated 23.11.1978 by which the plaint schedule property was acquired conferred half right on Kannan and that devolved on the plaintiffs, consequent on the death of Kannan. Pointing out that the plaintiffs are not interested in continuing the joint possession, they laid the suit for partition and for mesne profits. 3. The defendant resisted the suit, pointing out that by virtue of Ext.A1 dated 23.11.1978, Kannan did not derive any right as he had not contributed any funds towards purchase of the plaint schedule property. The SA 239/99 2 defendant had obtained kudikidappu right in 50 cents of property, which he sold and utilising the said funds, he had purchased the plaint schedule property and though Kannnan's name is seen included in the document, he has not contributed any funds towards the purchase of the property and therefore, he has no right over the suit property. On the basis of these contentions, he prayed for dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendant had DW1 examined and Exts.B1 to B5 marked. 5. On an appreciation of the evidence on record, the trial court came to the conclusion that the contention put forward by the defendants that the purchase was solely utilising his funds was true and that Kannan had no manner of right over the suit property. The suit was accordingly dismissed. SA 239/99 3 6. The disappointed plaintiffs carried the matter in appeal as AS No.25/90 before the Sub Court, Cherthala. The lower appellate court, after an independent consideration of the materials before it, found that Kannan had not contributed any funds for purchase of the suit property and accordingly dismissed the appeal confirming the judgment and decree of the trial court. That brings the plaintiffs before this court. 7. Notice is seen issued on the following questions of law raised in the second appeal : i) Whether the court below is justified in dismissing the suit purely on the basis of oral evidence of the parties ? ii) Whether the court below is justified in discarding the documentary evidence produced by the appellant ? iii)Whether the nature of possession is immaterial in a suit for partition ? 8. The learned counsel for the appellants pointed out that the courts below were not justified in taking the view that Kannan had no manner of right over the suit SA 239/99 4 property. Ext.A1 stands in the joint name of Kannan and the defendants and that being the position, it is clear that Kannan had half share in the property. It is also contended that the kudikidappu purchase by the defendant was for and on behalf of the family and therefore, he having sold the same for a consideration and utilising the same for purchasing the plaint schedule property, it had to enure to the benefit of Kannan also. It is accordingly contended that the judgment and decree of the courts below are unsustainable in law. 9. Per contra, the learned counsel for the respondent pointed out that there is absolutely no evidence to show that the purchase of kudikidappu by the defendant was for and on behalf of the family. The evidence was insufficient to show that Kannan had ever obtained kudikidappu rights. The learned counsel also pointed out that evidence was clear to the effect that Kannan had not contributed any funds for the purchase of the plaint schedule property and that would be evident from the SA 239/99 5 deposition of the plaintiff. Merely because the name of Kannan is seen included in Ext.A1, it does not lead to the conclusion that he had any right over the suit property. Unless it is shown that the purchase was utilising the funds of Kannan or that Kannan had contributed any amount for the purchase of the suit property, the mere inclusion of the name o f Kannan in the document of title will not confer any right on him. In support of that contention, the learned counsel relied on the decision in _**Vasanthakumary v. Omanakkuttan Nair**_ (2009(2) KHC 1049 (DB). 10. It is true that Ext.A1 document contains the name of Kannan, the predecessor-in-interest of the plaintiffs. The question is whether that by itself is sufficient to hold that Kannan has a share in the suit property. Both the courts below have appreciated the oral evidence in the case and have found that even according to the plaintiffs, Kannan had not contributed any funds for the purchase of the property. The definite case of the defendant was that SA 239/99 6 he had obtained 10 cents of property as kudikidappu and he had sold the same. Utilising the said funds, he had purchased the suit property. It appears that the defendant had placed confidence on Kannan and Kannan had done a mischief. Whatever that be, evidence is to the effect that there was no contribution by Kannan towards the sale consideration for the purchase of the suit property. 11. Section 45 of the Transfer of Property Act reads as follows : “45. Joint transfer for consideration – Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be with the interests to which they were respectively entitled in the fund and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively SA 239/99 7 entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.” ## 12. In the decision reported in ## _**Vasanthakumary v. Omanakkuttan Nair**_ (supra), it was held as follows : “When consideration is paid entirely and exclusively from the separate fund of one of the acquirers of the property, Section 45 of the Act squarely applies and only that party has exclusive title over the property notwithstanding the fact that the name of the person who has not contributed any consideration is shown in the document as one of the acquirers.” 13. The principles, therefore, are well settled. Merely because the name of a person is included in a document, it does not confer any right on him and the other person can certainly show that there was no contribution from the person whose name appears in the document nor had he any right over the property covered by the document. Both the courts below have concurrently found that Kannan had not contributed any funds for purchase of SA 239/99 8 the suit property. If that be so, the courts below were perfectly justified in coming to the conclusion that Kannan cannot have any right over the plaint schedule property. The finding that Kannan had not contributed any amount towards the purchase of the suit property, is a finding based on evidence on record. They are findings of fact. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merit and it is accordingly dismissed. ## **P.Bhavadasan, Judge** sta SA 239/99 9